MVP characterizes the statements at issue (the “Statements”) as:
6. Dillard’s statement at an April 23, 2019 Wake County school board meeting that “‘MVP’s success data [has been] proven to have been exaggerated or in some cases possibly even fabricated.’” [Compl. ¶ 14 (purporting to quote Dillard).] This Motion will refer to this statement as the “School Board Statement.” (Footnote 5)
F. THE SCHOOL BOARD STATEMENT IS NEITHER DEFAMATORY NOR FALSE.
MVP next identifies as defamatory a statement Dillard made at a Wake County school board meeting about data purporting to show the success of the MVP program in Wake County. Specifically, Dillard stated that “MVP’s success data [has] proven to have been exaggerated or in some cases possibly even fabricated.” [Compl. ¶ 14.]
1. The School Board Statement is Not Capable of Conveying Defamatory Meaning and is Nonactionable Opinion.
Like the other Statements at issue in this dispute, the School Board Statement was made in the course of a public debate about the efficacy of an educational curriculum, during which partisans would be expected to voice strong views. See Section II.A.1, supra. Given that context, the School Board Statement is not capable of conveying defamatory meaning.
More fundamentally, however, the School Board Statement is not actionable as defamation because it does not subject MVP to public hatred, contempt, or ridicule. West, 872 P.2d at 1008; see Direct Import I, 538 P.2d at 1041-42 (statement calling into question company’s assertions about effectiveness of product was not defamatory). The mere suggestion that a business’s success has been “exaggerated” is not the type of statement that injures a business in the eyes of an audience, since reasonable readers expect (and the law does not punish) puffery in the advertisement of a business’s products. See McBride v. Jones, 615 P.2d 431, 434 (Utah 1980) (“It is true that in usual commercial transactions, statements as to value, subsequently found to be false, may be tolerated as expressions of opinion or puffery.”). MVP can rely only on the statement that MVP’s success data was “in some cases possibly even fabricated” to support its defamation claim. But even that statement is not actionable.
First, nothing in Dillard’s statement accuses MVP of fabricating success data. This is key because an attribution of fabrication is the only potentially defamatory hook in the School Board Statement. Without the assertion that MVP was responsible for fabricating data, the statement is not capable of conveying defamatory meaning as against MVP. (Footnote 20)
Second, even if this were not the case, the statement does not convey defamatory meaning because it is phrased as a mere hypothesis or speculation, which “signals the reader that what is said is opinion, and not fact.” Levin v. McPhee, 119 F.3d 189, 197 (2d Cir. 1997). Indeed, the School Board Statement does not state that data has been fabricated, only that it has been “exaggerated or in some cases possibly even fabricated.” Courts have long recognized similar statements as protected opinion given their speculative nature. See Gray v. St. Martin’s Press, Inc., 221 F.3d 243, 250 (1st Cir. 2000) (finding statement that “Casey may have asked Gray to take on these controversial clients—for the purpose of spying on them” was speculation and that such was nonactionable option (emphasis added)). This is particularly true where the statement is based on disclosed facts. Id.; Restatement (Second) of Torts, §566, comment (c). And, here, Dillard had disclosed the facts upon which his statement was made, including in blog posts that disclose MVP’s “success data” and the actual DPI data upon which it was based. See Exhibits A and F. (Footnote 21)
2. MVP Has Not Alleged Facts Showing the School Board Statement is False.
Even if the School Board Statement was somehow capable of conveying defamatory meaning, MVP has not adequately alleged that it is false. See Section II.A.2, supra. MVP relies, again, on a conclusory allegation that the statement is false without any well-pled facts that would prove falsity, specifically that MVP’s success data has not been exaggerated or fabricated and that such success data is accurate. MVP’s claim based on the School Board Statement accordingly fails as a matter of law.
5 Dillard’s full statement at the April 23, 2019 school board meeting can be accessed at https://www.youtube.com/watch?v=Sc_Ev3ZKpi4. Dillard’s comments begin at the 1h:25m mark.
20 Said another way, MVP cannot show that the School Board Statement is “of and concerning” MVP, which is an essential element of a defamation claim. See West, 872 P.2d at 1007 (“To state a claim for defamation, [plaintiff] must show that defendants published the statements concerning [plaintiff]….” (emphasis added)). This requirement “is not a mere superficial technicality or trivial detail of American defamation law. Rather, [it] is a basic cornerstone doctrine that reflects the deepest and most fundamental social policies embodied in the law of defamation.” 1 Rodney A Smolla, Law of Defamation § 4:40.50 (2d. ed.). The burden of satisfying this requirement is not light and is a question of law for the court to decide. Three Amigos SJL Rest., Inc. v. CBS News Inc., 65 N.E.3d 35, 37 (N.Y. 2016).
21 The Court should consider Dillard’s blog posts when deciding whether the School Board Statement is actionable. Under Utah law, the Court is obligated to consider the context in a statement is made to determine whether it is defamatory. Jacob, 2009 UT 37, ¶ 18. That inquiry often involves consideration of publications beyond the statement at issue. See id. ¶ 27-28. This is particularly true where the statement is one in a series of publications that build on and add to each other. As a result, in Jacob, the court considered not just the election notice at issue, but the advertisement to which it responded and the general dispute between two parties. Id.